Monday, June 6, 2016

Because I Said So, That’s Why

In re Taylor, 2015 VT 95

By Christopher A. Davis

The SCOV never misses an opportunity to gently remind lower courts and state agencies that they need to use their words. This case presents another such opportunity.

The factual backdrop of this case reads like an episode of Nurse Jackie. Things did not go well for Dr. Stephanie Taylor, M.D., in the early-to-mid ‘90s, resulting in a suspension of her medical license by the Vermont Medical License Board in 1995 after Dr. Taylor lost her hospital privileges at Copley Hospital. Dr. Taylor subsequently entered into a stipulation and consent order in November of 1996 in which she admitted that she had engaged in unprofessional conduct in the form of a “chemical addiction” that posed a “threat to the health, safety, and welfare” of her patients; a “mental impairment” that affected her ability to competently practice medicine; and a “disregard for the fundamental principles of doctor-patient boundaries as they must exist within the psychiatric therapeutic setting” (quotes from the stipulation). Dr. Taylor agreed to the indefinite suspension of her medical license, subject to a whole bunch of conditions for reinstatement.

It got better, for a while. In 2000, the Board entered a new amended consent order upon request by Dr. Taylor that granted her a conditional license to practice medicine in Massachusetts specifically for purposes of a family-practice residency program. Another consent order followed in 2003 after she completed her residency which granted her a conditional license to practice in Vermont subject to many of the conditions in the original 1996 order. 

Then Dr. Taylor failed to comply with a random drug-testing provision of her conditional license in Massachusetts and the Massachusetts medical board suspended her license. Suspension in Vermont followed, and in September 2004 the State of Vermont filed a “specification of charges” alleging twenty-five counts of professional misconduct by Dr. Taylor in which she breached the terms of prior consent orders, improperly prescribed drugs, violated rules, and breached standards of practice. In August 2005, Dr. Taylor entered into—you guessed it—a consent order that, without requiring admissions of fault by Dr. Taylor, called for her to surrender her license in Vermont with the understanding that said surrender would be “final and irrevocable.” She also agreed to never seek reinstatement of her license in Vermont.

So of course eventually Dr. Taylor sought reinstatement of her license in Vermont, in 2013, via letter to the Board that acknowledged her agreement in the 2005 consent order not to seek reinstatement while also pointing out that she was really going through some stuff in ’05 and had since rocked out to the tune of starting her own consulting company, among other things, and wanted to incorporate a reinstatement of her medical license into the career mix. The Board heard her out at hearing on November 6, 2013, and then said no. Dr. Taylor lawyered up and in March 2014, submitted another request through counsel to the Board. 

The State responded to say that first, the Board needed to consider whether the facts and argument advanced by Dr. Taylor justified removal of the restrictive conditions of the 2005 consent order, and if so, then the matter should be remanded to the Board to consider the merits of re-licensure. In so responding, the State acknowledged that despite the restrictive conditions of the 2005 consent order, the Board retained authority to modify the order. The parties submitted additional briefings. A hearing was held in July 2014, and Dr. Taylor testified about changes in her personal life, her progress as a professional, her desire to practice medicine, and the ways in which she would avoid repeating her mistakes from the past, among other things. The State presented no evidence, but pointed a finger at Dr. Taylor’s litany of past failures to comply with the Board’s previous orders, and dropped the mic. The Board soaked it all in, retreated for considerations, and ultimately issued a one-page decision that referenced the arguments presented by both sides and unanimously rejected Dr. Taylor’s request. To the Appealmobile!

The SCOV will uphold the Board’s findings if they are supported by substantial evidence, and the Board draws rational conclusions from its findings as well as a correct interpretation of law. Traditional deference to agency decision-making is even more intense in this situation, because the Board is comprised of a group of professional peers. That said, the Board has to articulate a basis for its findings that connect its decision to the facts. Like a child frustrated by the seemingly arbitrary imposition of a 7:00pm bedtime during summer when you can literally hear other kids throwing footballs outside your window, the SCOV needs more out of its decision-makers than “Because I said so.” The SCOV needs to hear that Mommy and Daddy want to have a drink, sit in peace, and recall with the black humor of an Irish wake what led them over a decade ago to abandon their personal freedom and Bucket List goals in order to toss their combined incomes into a fire barrel called child-rearing.

That is precisely Dr. Taylor’s argument on appeal, and the SCOV sides with her. The Court notes that Dr. Taylor, both through pleadings and sworn testimony, established quite a record for the Board to draw on in considering her request. If the Board wants to draw from that in rejecting her request, that’s one thing, but what the Board cannot do is substitute a recitation of the parties’ arguments for its own findings and conclusions. The SCOV needs to know which part of Dr. Taylor’s presentation the Board is rejecting. Is it the loud chewing? Is it because she still leans on Borat impressions at cocktail parties? 

The State attempts to argue that findings aren’t necessary in a situation where a party seeks relief from judgment, but the SCOV points out that the State already maintained below that this was not that situation at all, but rather a duly authorized motion for modification of an order, in the nature of a contested hearing, for which findings were required.

So while recognizing the comical difficulties for the State in reaching agreements that limit damaging evidence which is super difficult to then dredge up at contested hearings years later, the SCOV reverses and remands to the Board for further findings to support whatever decision it reaches. The Court gives short shrift to other arguments presented by Dr. Taylor that didn’t move the needle either way, so we won’t rehash them here. 

Justice Dooley issues a concurring and dissenting opinion (joined by retired Justice Morse) in which he agrees that Dr. Taylor can’t challenge the Board’s authority to order an irrevocable revocation of her license (one of her other arguments) because she stipulated to that exact outcome. His disagreement comes in pointing out that Dr. Taylor got all the benefit from the 2005 consent decree that didn’t require her to admit liability to the State’s twenty-five-count allegations of professional misconduct, while now potentially avoiding the stipulated outcome of that contract with the State. If the Board does not dismiss her petition on remand, says Justice Dooley, she should be required to admit to the professional misconduct in 2004 and earlier, and that can be the starting point for a discussion about whether the public would be sufficiently protected by a return of her medical license.

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